34 S.C. 281 | S.C. | 1891
The opinion of the court was delivered by
On the 6th day of November, 1884, the defendant executed five obligations in the form of promissory notes, whereby he promised “to pay” to the plaintiff good brick in the kiln at McMakin’s brick yard as follows, to wit, 100,000 on the 1st May, 1885, the same number on 1st October, 1885, the same number on 1st May, 1886, the same number on the 1st October, 1886, and fifty thousand on the 1st October, 1887. These obligations, though lacking one of the essential features of a promissory note, will, for convenience merely, be designated as notes in the further consideration of this case. On.or about the 10th of February, 1886, after the first two of these notes had matured, and before the remaining three had become payable, the plaintiff commenced an action against the defendant, alleging in his complaint, first, the making of the two notes set out in the complaint by the defendant. Second. “That the consideration of said contract was the sale by the plaintiff to the defendant of certain personal property of the value of two thousand and fifty-five dollars.” Third. “That at the time the defendant gave to the plaintiff three other contracts of a similar character, which make up the amount of the purchase money.” Fourth. “That the value of the said brick is five dollars per thousand.” Fifth. “That the plaintiff has delivered to the defendant the property
To this complaint defendant answered, setting out specifically the terms of the trade with the plaintiff, whereby plaintiff sold to the defendant his brick yard, and also the engine, brick machine, and other machinery and tools used there in the making of brick, under the representation that the clay was ten feet thick over all of the land, and that said engine and machinery were as good as new; that in consideration thereof he gave to plaintiff the two notes set out in the complaint, and also the other three notes mentioned in the foregoing statement, “it being well understood that the brick therein referred to was unburnt brick.” But alleging that by reason of the delay in putting him in possession of the brick yard, and by reason of the failure of the property purchased to come up to the terms of the warranty, he had sustained damages for which he set up a counter-claim. He also alleged that ever since he obtained possession of the brick yard, he was always ready to deliver the brick according to the contract, as he claimed it to have been understood by both parties, but that plaintiff refused to receive anything but burned brick. To this answer, or so much thereof as set up a counter-claim, plaintiff filed a reply, denying each and every allegation upon which such claim was based. The case being thus at issue, came on for trial before his honor, Judge Wallace, and a jury on the27th of March, 1888, when a verdict was rendered in favor of plaintiff for eleven hundred and eighty-six 07-100 dollars, upon which judgment was duly entered.
In the meantime, the other three notes having matured, the present action was commenced on the 16th of February, 1888, a short time before the previous case was tried, and in his complaint the plaintiff alleges as his first cause of action the making for valuable consideration by the defendant of the obligation (which for convenience we designate as a note) payable 1st Octor
The case first came on for hearing before his honor, Judge Hudson, when the counsel for defendant moved to dismiss the complaint upon the ground that the matters now sought to be brought in issue were res judicata, as shown by the record of the former case, filed as an exhibit to the answer in this case. Thereupon plaintiff’s counsel asked leave to introduce parol testimony for the purpose of showing that the issues involved in the present action were not submitted to the jury in the former action, reading from the stenographic notes of the charge of Judge Wallace in the former case, wherein it appeared “that at the request of the attorney for the defendant, on the trial of that action, ‘the jury were instructed that only two of the contracts mentioned in the complaint in that action, to wit, those that were due at the time of the commencement of that action were in issue and were submitted to them.’ ” After hearing argument, an order was passed, sustaining the plea of former recovery and dismissing the complaint herein. But during the same term, the matter was, at the request of Judge Hudson, reconsidered and after
The case was then continued, as we suppose, and at a subsequent term came on for trial before his honor, Judge Izlar, and a jury, when a similar motion to that presented to Judge Hudson was submitted, which was overruled by Judge Izlar upon two grounds: 1st. Because he had no right to review or disregard the order of Judge Hudson. 2nd. Because, even if the matter were res integra, he thought the plaintiff was entitled to show by parol what were the issues submitted to and passed upon by the jury in the former action. Accordingly the testimony of Judge Wallace, which is set out in the “Case,” was received against the objections of defendant. From that testimony it is very clear that the issues in the present action were neither submitted to nor passed upon by the jury in the former trial. On the contrary, the judge not only says: “Only the two agreements above referred to were involved in the trial of that action and submitted to the jury,” but he adds, “In the course of the trial it was developed that there were other instruments in relation to the same contract between the parties, but they had not matured at the time of the commencement of that action. I instructed that they were only to pass upon the two instruments above described, and that these latter were not to be considered by them.” And further, in reference to the counter-claim, “the defendant requested that the jury should be charged that only the matured agreements upon which the action had been brought could be set off against this counter-claim, and they were so charged.”
The rule as established by this case from which we have so liberally quoted, is fully sustained by the authorities here and elsewhere. See Shettlesworth v. Hughey (9 Rich., 387), where the parol evidence adduced to show w'hat was the issue passed upon in the former action was very much like that resorted to in the present case, and the case of Henderson v. Kenner was distinctly recognized as authority for the admissibility of such testimony. See also Hart v. Bates, 17 S. C., 35; Ex parte Roberts, 19 Id., 150, where the same doctrine is recognized. In Eason v. Miller & Kelley (15 S. C., 194), though that case is not directly in point, the right to resort to the charge of the judge to ascertain what issues were submitted to and passed upon by the jury, was distinctly recognized. The same doctrine was recognized else
It being thus- settled that there' are cases in which parol or extrinsic evidence may be resorted to for the purpose of showing what were the issues determined in a former action, it only remains to determine whether the present case falls under that class. It seems to us that the bare inspection of the pleadings is sufficient to show that the issues presented by the pleadings in the two actions were not the same; and if so, then it is conceded that the plea in bar was properly overruled. In the former case the two notes which had matured at the time of the commencement of that action are set out as the plaintiff’s cause of action, and the mere fact that the other three notes, which had not then matured, are casually mentioned as going to make up the amount of the purchase money of the property for which the two notes actually sued upon were given in part of such amount, does not warrant the inference that the three notes which had not then matured, and which therefore were not then suable, except under the special provisions of the statute, which should have been set forth, if the purpose was to embrace them in that action, constituted any part of the cause of action in the former case. Anderson v. Pilgram, 30 S. C., 499. So that we are not prepared to admit that the record in the former action of itself is sufficient to show that the issues presented by the complaint in the present action were the same as those presented by the former complaint, or were even necessarily involved therein. But under the authorities above cited, it is quite sufficient to show that the record relied on as a bar leaves it doubtful as to what issues were therein determined.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.